Citation Nr: 0910376
Decision Date: 03/19/09 Archive Date: 03/26/09
DOCKET NO. 03-30 370 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for type II diabetes
mellitus, to include as secondary to the Veteran's service-
connected hypertension.
2. Entitlement to service connection for an eye disability,
claimed as poor vision secondary to diabetic neuropathy,
glaucoma, and cataracts, to include as secondary to the
service-connected hypertension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The Veteran served on active duty from November 1971 to April
1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Winston-Salem, North Carolina. The Board previously
remanded this case in June 2007 and October 2008.
The claim for service connection for an eye disability is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
The Veteran's type II diabetes mellitus was not first
manifest in service or for several years thereafter and was
not caused or permanently worsened beyond natural progression
as a consequence of his service-connected hypertension.
CONCLUSION OF LAW
Type II diabetes mellitus was not incurred in or aggravated
by service, or by the service-connected hypertension.
38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002
& Supp. 2008); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Service connection for type II diabetes mellitus
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection
requires competent evidence showing: (1) the existence of a
present disability; (2) in-service incurrence or aggravation
of a disease or injury; and (3) a causal relationship between
the present disability and the disease or injury incurred or
aggravated during service. Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet.
App. 498 (1995). For the showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity and sufficient
observation to establish chronicity at the time. If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any disease diagnosed after discharge
when all of the evidence establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Also, certain chronic diseases, including type II diabetes
mellitus, may be presumed to have been incurred during
service if manifested to a compensable degree within one year
of separation from active military service. 38 U.S.C.A.
§§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Additionally, disability which is proximately due to, or
results from, another disease or injury for which service
connection has been granted shall be considered a part of the
original condition. 38 C.F.R. § 3.310(a). Any increase in
severity of a nonservice-connected disease or injury that is
proximately due to or the result of a service-connected
disease or injury, and not due to the natural progress of the
nonservice-connected disease, will be service connected.
However, VA will not concede that a nonservice-connected
disease or injury was aggravated by a service-connected
disease or injury unless the baseline level of severity of
the nonservice-connected disease or injury is established by
medical evidence created before the onset of aggravation or
by the earliest medical evidence created at any time between
the onset of aggravation and the receipt of medical evidence
establishing the current level of severity of the nonservice-
connected disease or injury. 38 C.F.R. § 3.310(b); see also
Allen v. Brown, 7 Vet. App. 439, 448 (1995).
The Board has reviewed the Veteran's service treatment
records and observes that they are entirely negative for
complaints of, or treatment for, type II diabetes mellitus
symptoms. There were also no elevated blood glucose findings
during service, and the March 1974 separation examination
report indicates that a urinanalysis was negative for sugar
findings.
Subsequent to service, the Veteran's current diagnosis was
first noted in a February 1979 VA hospital report. At that
time, the Veteran was described as "[a] new diabetic" that
had "spent 15 days with us the last of December into early
January of 1979." The physician who signed the report did
not otherwise address the etiology or time of onset of the
diabetes mellitus.
A July 1998 VA examination report contains a diagnosis of
diabetes mellitus, insulin-dependent with complications of
diabetic retinopathy and diabetic neuropathy, and a separate
diagnosis of hypertension "adding to the above problem" was
also rendered.
Several subsequent private medical records and statements,
while not directly linking type II diabetes mellitus and
hypertension, suggest a causal role of both diseases in terms
of eye symptomatology. In a December 1998 statement, Dr.
Elven C. Smith, III, noted that hypertension and diabetes had
caused significant changes in the Veteran's eyes and,
subsequently, his vision. In a June 1999 statement, Igor
Westra, M.D., noted that the Veteran's vision problems were
secondary to diabetes and hypertension. Subsequently, John
L. Lewis, O.D., noted in October 2001 that the Veteran had
systemic hypertension "which only exacerbates the vascular
changes associated with diabetic retinopathy." Dr. Lewis
reiterated this opinion in statements from January 2006 and
July 2007.
In the report of a March 2008 VA examination, the examiner
noted that the date of diagnosis of type II diabetes mellitus
was 1978, described as three years after the Veteran left the
military. The examiner further stated that the questions of
the date of onset of diabetes or whether diabetes mellitus
was related to active service could not be resolved "without
resort to mere speculation." The rationale for this opinion
was that there were no laboratory results in the service
medical records, and, accordingly, there was no way of
knowing what the blood sugar levels were at the time. The
Veteran was noted to have been diagnosed with diabetes
mellitus three years after leaving the military, initially
with type I diabetes mellitus. Confusingly, he now had the
diagnosis of type II diabetes mellitus.
A further VA diabetes mellitus examination was conducted in
November 1998, following the Board's October 2008 remand.
The examiner who conducted this examination reviewed the
claims file and determined that it was not at least as likely
as not that the Veteran's diabetes mellitus was etiologically
related to service. In this regard, the examiner noted the
absence of in-service findings during service, particularly
on the discharge physical examination. Indeed, the examiner
noted that the Veteran's urine test at discharge was negative
for sugar and that "[i]f he were an undiagnosed diabetic, he
would likely have had sugar in his urine." The examiner
further determined that it was not at least as likely as not
that the diabetes mellitus was caused or aggravated by
hypertension. While the two conditions can coexist,
hypertension "does not cause diabetes" or worsen it, though
it can worsen conditions caused by diabetes such as renal
impairment. The examiner indicated that diabetes was likely
to cause hypertension, not the reverse.
Overall, the Board has reviewed the cited medical records and
finds that the preponderance of such evidence does not
establish that the Veteran's type II diabetes mellitus is
etiologically related to either service or the service-
connected hypertension. Initially, the Board notes that
there is no competent medical evidence of record whatsoever
indicating that type II diabetes mellitus was first manifest
in service or for several years thereafter, and the November
2008 VA examination report, in fact, suggests the contrary.
In this case, the Board is aware of the July 1998 diagnosis
of diabetes mellitus, insulin-dependent with complications of
diabetic retinopathy and diabetic neuropathy, as well as the
separate diagnosis of hypertension "adding to the above
problem." It is not, however, clear from this diagnosis
whether hypertension was found by the examiner to be
"adding" to the retinopathy and neuropathy, the underlying
diabetes mellitus, or all three disorders. Moreover, the
examiner did not support this statement with any kind of
rationale.
By contrast, the VA examiner from November 2008 specifically
found no relationship whatsoever between the type II diabetes
mellitus and the service-connected hypertension. This
examiner further noted that diabetes can cause hypertension,
but not vice versa. Given the specificity and detail of this
opinion as compared with the July 1998 opinion, the Board
finds the later opinion to have substantially greater
probative value. On balance, therefore, the medical evidence
of record does not support the Veteran's claim.
Currently, the only other evidence of record supporting the
Veteran's claim is his own lay opinion, as indicated in his
March 2007 hearing testimony. The Veteran, however, has not
been shown to possess the requisite medical training,
expertise, or credentials needed to render a diagnosis or a
competent opinion as to medical causation. Accordingly, his
lay opinion does not constitute competent medical evidence
and lacks probative value. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet.
App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988);
YT v. Brown, 9 Vet. App. 195, 201 (1996).
Overall, the preponderance of the evidence is against the
Veteran's claim for service connection for type II diabetes
mellitus, to include as secondary to the service-connected
hypertension, and this claim must be denied.
In reaching this determination, the Board acknowledges that
VA is statutorily required to resolve the benefit of the
doubt in favor of the Veteran when there is an approximate
balance of positive and negative evidence regarding the
merits of an outstanding issue. That doctrine, however, is
not applicable in this case because the preponderance of the
evidence is against the Veteran's claim. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).
II. Duties to notify and assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical evidence or lay evidence that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002). In accordance with 38 C.F.R. §
3.159(b)(1), proper notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide. Notice
should be provided to a claimant before the initial
unfavorable decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004). Any error in notification should be
presumed prejudicial, and VA has the burden of rebutting this
presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir.
2007).
38 C.F.R. § 3.159 has been revised in part recently. These
revisions are effective as of May 30, 2008. 73 Fed. Reg.
23,353-23,356 (April 30, 2008). The final rule, among other
changes, removes the third sentence of 38 C.F.R. §
3.159(b)(1), which had stated that VA will request the
claimant to provide any evidence in his or her possession
that pertains to the claim.
In the present case, the Veteran was notified of the
information and evidence needed to substantiate and complete
this claim in a March 2005 letter, and the Veteran's claim
has since been readjudicated in several Supplemental
Statements of the Case beginning in February 2007. In March
2006, the Veteran was notified that a disability rating and
an effective date for the award of benefits are assigned in
cases where service connection is warranted. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In addition, VA has fulfilled its duty to assist in obtaining
identified and available evidence needed to substantiate a
claim. All relevant records of treatment from private
medical providers, VA, and the Social Security Administration
have been obtained. Additionally, the Veteran has been
afforded multiple VA examinations in conjunction with this
appeal.
Overall, there is no evidence of any VA error in notifying or
assisting the Veteran that reasonably affects the fairness of
this adjudication.
ORDER
Service connection for type II diabetes mellitus, to include
as secondary to the Veteran's service-connected hypertension,
is denied.
REMAND
The United States Court of Appeals for Veterans Claims has
determined that a remand by the Board confers upon a
claimant, as a matter of law, the right to compliance with
remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71
(1998).
In this case, the Board has previous included remand
instructions for a VA examination addressing the question of
a causal link between a current eye disability and the
Veteran's service-connected hypertension on two occasions, in
June 2007 and October 2008. To date, however, there has been
inadequate compliance with these remand instructions. The
most recent VA eye examination report, from November 2008,
contains no opinion as to whether a causal link exists
between these two disabilities. This deficiency was noted by
the Veteran's representative in a brief presentation (which
is dated in August 2008 but clearly was drafted subsequent to
that date in view of references to the November 2008
examination) furnished subsequent to the examination.
While the Board regrets further delay in this matter,
additional development is needed to ensure compliance with
the prior remand orders. Id.
Accordingly, the case is REMANDED for the following action:
1. The Veteran's claims file should be
furnished to the doctor who conducted the
November 2008 VA eye examination; if that
doctor is unavailable, the claims file
should be furnished to another
appropriate medical professional. Based
on a review of the claims file and the
clinical findings of the November 2008
examination, the examiner is requested to
offer an opinion as to whether it is at
least as likely as not (e.g., a 50
percent or greater probability) that the
diagnosed eye disorder was caused or
aggravated (e.g., worsened beyond natural
progression) by the service-connected
hypertension. A complete rationale
should be given for all opinions and
conclusions expressed in a typewritten
report.
2. After completion of the above
development, the Veteran's claim for
service connection for an eye disability,
claimed as poor vision secondary to
diabetic neuropathy, glaucoma, and
cataracts, to include as secondary to the
service-connected hypertension, should be
readjudicated. If the determination
remains adverse to the Veteran, he and
his representative should be furnished
with a Supplemental Statement of the Case
and given an opportunity to respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition. The Veteran has
the right to submit additional evidence and argument on this
matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs